Supreme Court of Ohio Clerk of Court - Filed January 06, 2016 - Case No. 2016-0020 IN THE SUPREME COURT OF OHIO STATE EX REL. TRACY L. JONES CASE NO. 5903 Bear Creek Drive Bradford Heights. Ohio 44146 STATE EX REL. WILLIAM S. BOOTH ORIGINAL ACTION IN MANDAMUS 1243 Wilson Drive Dayton, Ohio 45402 ALTERNATIVE AND PEREMPTORY WRITS REQUESTED STATE EX REL. DANIEL L. DARLAND 381 1 N. Main Street Dayton, Ohio 45405 STATE EX REL. LATONYA D. THURMAN 2618 North Cassady Avenue Columbus, Ohio 43219 Relato rs, JON HUSTED OHIO SECRERTARY OF STATE 180 East Broad Street, 16th Floor Columbus, Ohio 43215 Respondent. Donald J. McTigue (0022849) Mark A. McGinnis (0076275) J. Corey Colombo (0072398) Derek Clinger (0092075) MCTIGUE MCGINNIS COLOMBO LLC 545 East Town Street Columbus, Ohio 43215 Phone: (614) 263-7000 Facsimilei (614) 263-7078 dmctigue@electionlawgroup.oom ccolo1nbo@electionlawgroup.com dclinucr@electionlawgroup?om Comma! Rafa tors Counsel for Respondent NOW COME THE RELATORS, and hereby aver as followsi NATURE OF THE ACTION AND JURISDICTION This is an action in mandamus due to Ohio Secretary of State Jon Husted?s failure to fulfill his clear statutory obligation to certify and transmit a proposed initiative (?Proposed Law?) to the General Assembly pursuant to Art. II, 11), Ohio Constitution. As provided in Ohio Constitution Article II, 1b when a sufficient number of the electors of this state have signed an initiative petition proposing a law veri?ed as provided therein, the Secretary of State is required to transmit it to the General Assembly as soon as it convenes. Despite the unequivocal provisions of Ohio Constitution Article II, 1b requiring the Secretary of State to transmit the Proposed Law to the General Assembly, and the fact that the county boards of elections have reviewed the initiative petition containing the Proposed Law and veri?ed that it contains suf?cient valid signatures in accordance with Respondent?s Directive, the Secretary of State refuses to so act in accordance with the Ohio Constitution. Accordingly, Relators seek an order and/or judgment from this Court that Respondent Secretary of State certify the suf?ciency of the petition and submit the Proposed Law to the General Assembly. Relators alternatively seek an order from this Court certifying the sufficiency of the petition and submitting the Proposed Law to the General Assembly. Relators affirmatively allege that they have acted with the utmost diligence in bringing the instant action, that there has been no unreasonable delay or lapse of time in asserting their rights herein and, further, there is no prejudice to Respondent. [See, State ex rel P010 V. Cuyaboga Cry. Bd. ofElectans (1995), 74 Ohio St.3d 143, 145, 656 1277.] Relator lacks an adequate remedy at law. PARTIES Relators Tracy L. Jones, William S. Booth, Daniel L. Darland, and Latonya D. Thurman (?Petitioners?) are the individuals designated on the face of the initiative petition to represent the petitioners in all matters relating to the initiative petition or its circulation pursuant to Ohio Rev. Code 3519.02. Respondent Ohio Secretary of State Jon Husted (?Secretary of State?) is the Ohio Secretary of State, the Chief Elections Officer of the State of Ohio. Pursuant to Ohio Rev. Code Respondent Husted has a statutory responsibility to certify the sufficiency or insufficiency of all statewide initiative petitions. [See 1g, Art. II, Ohio Constitution; Ohio Rev. Code $519.16.] ALLEGATIONS SUPPORTING CLAIM FOR RELIEF Respondent Has A Ministerial Duty to Certify the Suf?ciency of the Initiative Petition Based on the Verification Reports Provided by the Boards of Elections and Transmit the Proposed Law to the General Assembly Pursuant to Ohio Constitution Article 2, 1b, the citizens of Ohio may propose a law by filing an initiative petition with the Secretary of State containing the signatures of three percent of the electors and veri?ed as therein provided. 2 9. 10. 11. Ohio Constitution Article 2, 1b, provides, in part3 ?When at any time, not less than ten days prior to the commencement of any session of the general assembly, there shall have been ?led with the secretary of state a petition signed by three per centum of the electors and veri?ed as herein provided, proposing a law, the full text of which shall have been set forth in such petition, the secretary of state shall transmit the same to the general assembly as soon as it Accordingly, pursuant to the Ohio Constitution, where the requisite number of electors present an initiative petition veri?ed as provided therein to the Secretary of State, the boards of elections verify the signatures, and the certifications received from the boards of elections, taken together, indicate that the initiative petition contains the requisite number of signatures, the Secretary of State La?transmit the proposed law to the General Assembly. Ohio Rev. Code 3519.15 providesi Whenever any initiative or referendum petition has been filed with the secretary of state, he shall forthwith separate the part-petitions by counties and transmit such part-petitions to the boards of elections in the respective counties. The several boards shall proceed at once to ascertain whether each part-petition is properly verified, and whether the names on each part-petition are on the registration lists of such county, or whether the persons whose names appear on each part?petition are eligible to vote in such county, and to determine any repetition or duplication of signatures, the number of illegal signatures, and the omission of any necessary details required by law. The boards shall make note opposite such signatures and submit a report to the secretary of state indicating the suf?ciency or insuf?ciency of such signatures and indicating whether or not each part-petition is properly veri?ed, eliminating, for the purpose of such report, all signatures on any part'petition that are not properly verified. In determining the sufficiency of such a petition, only the signatures of those persons shall be counted who are electors at the time the boards examine the petition. [Emphasis supplied] DJ 12. Ohio Rev. Code provides: The properly verified part-petitions, together with an electronic copy of the part'petitions, shall be returned to the secretary of state not less than one hundred ten days before the election, provided that. in the ease of an initiated law to be presented to the general assemblv. the boards shall prompth check and return the petitions together with their report. The secretary of state shall determine the sufficiency of the signatures not later than one hundred five days before the election.? The secretarv of state shall notifv the chairperson of the committee in charge of the circulation as to the suf?ciency 0r insufficiencv of the petition and the extent of the insufficiency. [Emphasis supplied] 13. Initiative proponents proposing a law must presently submit at least 91,677 valid signatures, a number equal to at least 3% of the total vote cast for the office of governor in the last gubernatorial election. [See 1b, Art. ll, Ohio Constitution] Further, petitioners are required to submit valid signatures equal to at least one and a half percent of the total vote cast for governor at the most recent gubernatorial election in at least 44 of the 88 counties in Ohio. [Sec 1g, Art. ll, Ohio Constitution] Finally, the petition must comply with various other constitutional and statutory requirements in order for the proposed amendment to be submitted to the electors, including the requirements set forth in Art. II, Sec. 1g of the Ohio Constitution and Ohio Rev. Code 3519.01. Relators? initiative petition meets all legal requirements. The language that the Secretary of State determine the suf?ciency of the signatures not later than one-hundred-Iive days before the election is nonsensical in this context, as the initial initiative petition refers the matter to the General Assembly rather than to the ballot. The timeline, along with the words ?forthwith? and ?at once" contained in R.C. 3519.15 supports the assertion that the process is intended to continue moving without delay. 4 14. 16. 17. The Petitions Filed with the Secretary of State On December 22, 2015, the Petitioners ?led 10,029 part-petitions containing 171,205 signatures with Respondent Secretary of State. On December 23, 2015, Respondent issued Directive 2015'40, ?Instructions Regarding the Review, Examination, and Verification of the Petition proposing an Initiated Statute (Ohio Drug Price Relief Act),? to the boards of elections to provide instructions on the ?review, examination, and verification of signatures on the petition proposing an initiated statute.? [Exhibit Directive 2015-40 instructed the boards of elections to review the instructions contained in Chapter 11 of the Election Of?cial Manual (Directive 2015- regarding the review of circulator?s statements and signatures and marking petitions. Section 1.03 of the Election Of?cial Manual (Directive 2015-36) instructsi Circulator?s Statement mm The board must accept the circalator?s statement of part-petitions at face value unless there are inCOnsistencies with the number of signatures witnessed (see below) or with information about the circulator across part-petitions reviewed within a single county the circulator writes a different permanent residence address on different part?petitions). If the circulator reperted witnessing fewer than the total number of uncrossed out signatures submitted on the part-petition, then the board must invalidate the entire part-petition. If the circulator reported witnessing the same or more than the total number of signatures not crossed out on the part-petition, then the board must not invalidate 18. 19. 20. the part?petition for this reason alone. Instead, the board must review the validity of each signature as usual. [Italic Emphasis Supplied] The above instructions have been the consistent instructions from the Secretary of State?s of?ce to the boards of elections for decades. Directive 2015-40 further provided that once a board of elections completed the veri?cation process, the director of the board of elections was to sign and return the county's certi?cation form no later than noon on December 30, 2015, less than seven days after the date of the Directive. Respondent Secretary of State received certification forms from all of the 88 county boards of elections on or before December 30, 2015. Based on the certification forms from the 88 county boards of elections reported (certified) that the initiative petition contained 119,031 valid signatures, 27,354- more than required by Art. 11, 1b of the Ohio Constitution, and 48 of the 88 counties met the county threshold requirement, four more than required by Art. II, 1b of the Ohio Constitution At 5102 p.1n. on December 30, 2015, an attorney from the law firm of Bricker 8.: Eckler LLP transmitted an electronic mail communication to attorney Jack Christopher, General Counsel in the Ohio Secretary of State?s office, on behalf of its client 2 That correspondence included a letter addressed to Secretary of State Husted setting forth purported issues and concerns with the initiative petition and requesting that he take several actions, including: 2 PIIRMA, the Pharmaceutical Research and Manufacturers ol?Amcricu, is an advocacy and public policy organization representing pharmaceutical companies. is a known opponent ol'laws such as the one being initialed here. 23. ?On behalf of our client, we respectfully request your consideration of several issues that suggest violations of Ohio law and potentially fraudulent practices in connection with the Ohio Drug Price Relief Act petition (?the Petition?) ?led on December 22, 2015. We would appreciate your review and instruction to the Boards of Elections regarding two statistically and legally signi?cant issuesi? ?We respectfully ask that you direct the BOEs, consistent with Ohio law and with protecting the sanctity of the ballot and electors? signatures, to strike those part-petitions that demonstrate the issues outlined above?? ?Additionally, we respectfully ask that you refrain from certifying the petition and/or transmitting the Petition to the General Assembly until such time as a thorough investigation of these issues can be conducted. This investigation would allow time for determining whether the Petition actually contains the requisite number of lawful signatures, or alternatively whether any supposedly requisite number of signatures was achieved solely through fraud and violations of Ohio election laws? ?k?k?k ?Moreover, until such time as the Secretary can investigate and determine the sufficiency of the Petition, the Secretary cannot and should not transmit the Petition to the General Assembly.? Petition challenges, such as those set forth in the letter referenced above, are committed to the exclusive and original jurisdiction of this Court as provided in Art. 11, 1g, of the Ohio Constitution, to wit3 ?The Ohio supreme court shall have original, exclusive jurisdiction over all challenges made to petitions and signatures upon such petitions under this section. If no ruling determining the petition or signatures to be insufficient is issued at least eighty-five days before the election, the petition and signatures upon such petitions shall be presumed to be in all respects sufficient.? On January 4-, 2016, the General Assembly first convened its 2016 session. The Second Directive 24. On January 4, 2016, rather than transmit the Proposed Law to the General Assembly as required by the Ohio Constitution, Respondent issued Directive 2016-01, ?Re'Review of the Ohio Drug Price Relief Act.? [Exhibit Despite the fact that each of the boards of elections had already undertaken considerable effort and expense to review and issue certi?cations verifying the validity of the part-petitions and signatures based on Respondent?s own instructions in Directive 2015-40, Respondent has returned all partrpetitions to the boards of elections to conduct a ?re-review? not contemplated by the Ohio Constitution or Ohio Law. 26. Directive 2016-01 further provides that the boards of elections must complete the ?re-review? and ?re-certify? their findings to the Secretary of State?s of?ce no later than January 29, 2016, twenty-?ve days after the date of the Directive. 27. Directive 201601 cites two particular issues for the boards of elections to examine during the re'review process: (1) Whether ?a signature was improperly removed in violation of RC. and/or and; (2) whether the ?circulator?s statement is invalid under RC. the precise issues raised in the letter. ?1 7? A ?re-review" on this ground has no effect on the number of valid signatures. There is nothing in the law that an entire part-petition can be invalidated because it contains a stricken signature. Since a signature that has been stricken has not been counted, there is no point in ?re-reviewing" the presence of stricken signatures on a part- petition. These instructions to the boards ot?elections contained in the Election Of?cial Manual and referenced in Directive 2015-30 were just re-promulgated by the Secretary of State on December 15, 2015. Other than the letter. there was no other known intervening factor that would form the basis for the need to issue a second Directive revising the instructions given days earlier. 28. 30. 31. 32. Respondent Secretary of State has no authority to return the part-petitions back to the boards of elections for a ?re'review? and issuance of ?re- certifications? and delay the issuance of his certi?cation of the sufficiency of the petition and his transmittal of the Proposed Law to the General Assembly pending a ?re-review? and ?re-certification? by the boards of elections. Respondent?s engineering a ?re-certification process? appears to be in response to the correspondence received on behalf of There is no indication or evidence that the boards of elections failed to follow the Secretary of State?s instructions contained in Directive 2015'40 when reviewing the part-petitions or when issuing their respective certi?cations. Directive 2016-01?s instruction that the ?re?review? process may now include ?evidentiary hearings that [the boards] may believe necessary to complete their duties? runs counter to the intent of the Ohio Constitution, which provides that this Court is vested ?with original, exclusive jurisdiction over all challenges made to petitions and signatures upon such petitions [Art II, 1g, Ohio Constitution] Further, the delay caused by the ?re-review? and ?re?certi?cation process? runs counter to the timeline contemplated by the Ohio Constitution. The Ohio Constitution mandates the Proposed Law ?shall? be transmitted to the General Assembly ?as soon as it convenes.? Accordingly, the Ohio Constitution contemplates that any veri?cation process with respect to the part-petitions must be completed prior to such date, 1.9., prior to the time when the General 83. 34. Assembly convenes. Indeed, from the time the part-petitions were filed in Columbus, Directive 2015-40 gave the boards of elections 7 days to complete the review and certi?cation process, which they did, leaving 5 days for Respondent to perform his ministerial duty. Now, rather than transmit the petition containing the Proposed Law to the General Assembly as required, Respondent has issued a second Directive calling for a ?re-certi?cation? process on the same day the General Assembly convened for the first time in 2016. Directive 2016-01 will result in a delay of at least 25 days before transmission of the Proposed Law to the General Assembly. This adversely impacts the time provided in the Constitution for petitioners to file a supplementary petition to gain access to the 2016 General Election ballot. The Constitutional scheme provides speci?c time periods for each step in the process for proposing a law by initiative petition. [See, Art. 11, 1b, Ohio Constitution, which provides for the following sequence of events i (1) the Secretary of State transmits the initiative petition containing the proposed law to the General Assembly as soon as it convenes; (2) the General Assembly has four months to take action on the proposed law; (3) if the General Assembly fails to act, or amends the proposed law, the petitioners have 90 days to collect: additional signatures to place the issue on the ballot; and, (4-) if the petitioners collect sufficient additional signatures, the proposed law is submitted to the electors at the next general election occurring subsequent to 125 days following the filing of the ?nal second petition. Each day that Respondent fails to 10 36. 37. 38. transmit the Proposed Law effectively reduces the 90-day supplementary petition period and makes it less likely that the Proposed Law will be submitted to the electors at the November 8, 2016 general election. Indeed, Directive 2016-01 essentially cuts this supplementary period by at least 25 days for the 2016 general election. CLAIM FOR RELIEF Issuance of a Writ of Mandamus Directing Respondent to Comply with His Constitutional and Statutory Obligations Each and every allegation contained above is incorporated as if fully rewritten herein. When a petition proposing a law which contains the signatures of three percent of the electors and veri?ed as therein provided has been filed with the Secretary of State and certi?ed by the boards of elections, the Secretary of State is required to certify the validity of the petition and transmit it to the General Assembly as soon as it convenes. [Art II, Sec. 1b, Ohio Constitution] Respondent has been presented with an initiative petition which contains the signatures of three percent of the electors and has been certified by the boards of elections as fulfilling the constitutional requirements. Despite receiving certification forms conclusively indicating that the part- petitions containing the Proposed Law have been properly verified and contain sufficient signatures, Respondent Secretary of State has not certified the sufficiency of the petition. ll 39. 41. 42. Despite receiving certification forms conclusively indicating that the part? petitions containing the Proposed Law have been properly verified and contain suf?cient signatures, Respondent Secretary of State has not transmitted the petition containing the Proposed Law to the General Assembly as required by Art. II, ?1b, Ohio Constitution. Respondent Secretary of State has a ministerial and clear legal duty to certify the sufficiency of the initiative petition based on the certification forms received from the boards of elections and to immediately transmit the Proposed Law to the General Assembly. Relators have a clear legal right to have Respondent certify the sufficiency of the initiative petition and immediately transmit the petition to the General Assembly. Respondent has abused his discretion and/or clearly disregarded applicable legal provisions in not certifying the suf?ciency and validity of the initiative petition and immediately transmitting it to the General Assembly. Relators lack any other relief than an order or judgment from this Court ordering that Respondent certify the suf?ciency of the initiative petition and immediately transmit the petition to the General Assembly. Prayer for Relief HEREFORE, Relators respectfully pray the Court to grant the following reliefi A. Issue a peremptory Writ of Mandamus ordering Respondent to certify the sufficiency and validity of the initiative petition and immediately transmit it to the General Assembly. . Issue a Writ oflVlandemus ordering Respondent to certify the sufficiency and valldity of the initiative petition and immediately transmit it to the General Assembly. . Issue alternative writ or other Order certifying the sufficiency and validity of the initiative petition and immediately transmitting it to the General Assembly. . Assess the costs of this action against Respondent; . Award Relators their attorneys? fees and expenses; and . Award such other relief as may be appropriate. Respectfully submitted, 666m 1. McTigue (0022849) Mark A. McGinnis (0076275) Corey Colombo (0072398) Derek Clinger (0092075) MCTIGUE MCGINNIS S: COLOMBO LLC 545 East Town Street Columbus, Ohio 43215 Phone: (614) 263?7000 Facsimile: (614) 263-7078 dmctigue@electionlawgroup.com mmcginnis@electionlawgroup.com ccolombo@electionlawgroupcom dclinger@electionlawgroupcom Counselfor Relators 13 Case No. In the Supreme Court of Ohio STATE EX REL. TRACY L. JONES, et Belatozs, v. JON HUSTED, Respondent. 01 r'gjnaf Action in Mandamus AFFIDAVIT OF TRACY L. JONES Franklin County /ss State of Ohio I, Tracy L. Jones, having been duly sworn and cautioned according to law, hereby state that I am over the age of eighteen years and am competent to testify as to the facts set forth below based on my personal knowledge and having personally examined all records referenced herein, and further state as followsi 1. I am the Relator in this action and a quali?ed elector and resident of the State of Ohio. 2. This is an action in mandamus clue to Ohio Secretary of State Jon Husted?s failure to fulfill his clear statutory obligation to certify and C71 transmit a proposed initiative (?Proposed Law?) to the General Assembly pursuant to Art. 1b, II, Ohio Constitution. Relators seek an order and/or judgment from this Court that Respondent Secretary of State certify the sufficiency of the petition and submit the Proposed Law to the General Assembly. Relators alternatively seek an order from this Court certifying the sufficiency of the petition and submitting the PrOposed Law to the General Assembly. Relators have acted with the utmost diligence in bringing the instant. action, that there has been no unreasonable delay or lapse of time in asserting their rights herein and, further, there is no prejudice to Respondent. . Relator lacks an adequate remedy at law. . Relators William S. Booth, Daniel L. Darland, and Latonya D. Thurman, and myself (?Petitioners?) are electors in the State of Ohio. They are the five individuals designated on the face of the petition to represent the petitioners in all matters relating to the initiative petition or its circulation. On December 22, 2015, the Petitioners filed 10,029 part-petitions containing 171,205 signatures with Respondent Secretary of State. . Directive 2016-01 will result in a delay of at least 25 days before transmission of the Proposed Law to the General Assembly. This adversely impacts the time for petitioners to file a supplementary petition to gain access to the 2016 General Election ballot. 9. Accordingly, Respondent has a clear legal duty to certify the suf?ciency of the initiative petition and immediately transmit the petition to the General Assembly. 10.Relators have a clear legal right to have Respondent certify the sufficiency of the initiative petition and immediately transmit the petition to the General Assembly. 11.Respondent has abused his discretion and/or clearly disregarded applicable legal provisions in not certifying the Suf?ciency and validity of the initiative petition and immediately transmitting it to the General Assembly. 12.Relators lack any other relief than an order or judgment from this Court ordering that Respondent certify the suf?ciency of the initiative petition and immediately transmit the petition to the General Assembly. 13.1 have read the Complaint filed in this action and state that matters as alleged therein are true. AFFIANT NAUGI-IT I ?l A Sworn to and subscribed before me this day 01" January, 2016. Noi?ary??blic Case No. In the Supreme Court of Ohio STATE EX REL. TRACY L. JONES, et 3616750119, v. JON HUSTED, Respondent. 01231223114050}: in Mandamus AFFIDAVIT OF J. COREY COLOMBO Franklin County State of Ohio I, J. Corey Colombo, having been duly sworn and cautioned according to law, hereby state that I am over the age of eighteen years and am competent to testify as to the facts set forth below based on my personal knowledge and having personally examined all records referenced herein, and further state as follows: 1. I am an attorney at law, licensed in the State of Ohio, and Counsel of Record in the instant action. 2. On December 23, 2015, Respondent issued Directive 2015-40, ?Instructions Regarding the Review, Examination, and Verification of the Petition proposing an Initiated Statute (Ohio Drug Price Relief Act),? to the boards of elections to provide instructions on the ?review, examination, and verification of signatures on the petition proposing an initiated statute.? . Respondent Secretary of State received certification forms from all of the 88 county boards of elections on or before December 30, 2015. Based on the certification forms from the 88 county boards of elections reported (certi?ed) that the initiative petition contained 119,031 valid signatures, 27,354 more than required by Art. II, 1b of the Ohio Constitution, and 48 of the 88 counties met the county threshold requirement, four more than required by Art. ll, 11) of the Ohio Constitution . At 5:02 p.m. on December 30, 2015, an attorney from the law firm of Bricker Eckler LLP transmitted an electronic mail communication to attorney Jack Christopher, General Counsel in the Ohio Secretary of State?s office, on behalf of its client That correspondence included a letter addressed to Secretary of State Husted setting forth purported issues and concerns with the initiative petition and requesting that he take several actions, including: ?On behalf of our client, we respectfully request your consideration of several issues that suggest violations of Ohio law and potentially fraudulent practices in connection with the Ohio Drug Price Relief Act petition (?the Petition?) filed on December 22, 2015. We would appreciate your review and instruction to the Boards of Elections regarding two statistically and legally significant issuesi? 931 ?We respectfully ask that you direct the BOEs, consistent with Ohio law and with protecting the sanctity of the ballot and electors? signatures, to strike those part-petitions that demonstrate the issues outlined above:? ?Additionally, we respectfully ask that you refrain from certifying the petition and/or transmitting the Petition to the General Assembly until such time as a thorough investigation of these issues can be conducted. This investigation would allow time for determining whether the Petition actually contains the requisite number of lawful signatures, or alternatively whether any supposedly requisite number of signatures was achieved solely through fraud and violations of Ohio election laws?? ?Moreover, until such time as the Secretary can investigate and determine the sufficiency of the Petition, the Secretary cannot and should not transmit the Petition to the General Assembly.? the Pharmaceutical Research and Manufacturers of America, is an advocacy and public policy organization representing pharmaceutical companies. is a known opponent of laws such as the one being initiated here. On January 4, 2016, the General Assembly first convened its 2016 session. On January 4, 2016, rather than transmit the Proposed Law to the General Assembly as required by the Ohio Constitution, Respondent issued Directive 201601, ?Re*Review of the Ohio Drug Price Relief Act.? 8. Directive 2016-01 will result in a delay of at least 25 days before transmission of the Proposed Law to the General Assembly. This adversely impacts the time provided in the Constitution for petitioners to ?le a supplementary petition to gain access to the 2016 General Election ballot. 9. I have read the Complaint ?led in this action and state that matters as alleged therein are true. I have also reviewed the 2 Exhibits attached to the Complaint which are Directives issued by Respondent. FURTHER AFFIANT SAYETH -. If 2f/ we) ?at @011le C0 OMBO Sworn to and subscribed before me this day of 51/? w. ,w . I Nota'iTPUblic Case No. ____________ In the Supreme Court of Ohio ---------------------------------------------------STATE EX REL. TRACY L. JONES., et al., Relators, v. JON HUSTED, Respondent. Original Action in Mandamus _______________________________ Exhibit A _______________________________ DIRECTIVE 2015-40 December 23, 2015 To: All County Boards of Elections Directors, Deputy Directors, and Board Members Re: Instructions Regarding the Review, Examination, and Verification of the Petition Proposing an Initiated Statute (Ohio Drug Price Relief Act) SUMMARY This Directive provides instructions to county board of elections on the review, examination, and verification of signatures on the petition proposing an initiated statute.1 Each board of elections must complete its review, examination, and verification consistent with the instructions outlined in this Directive and return its certification to the Secretary of State’s Office no later than noon on December 30, 2015. Please note that the Secretary of State’s Office is open until 5:00 p.m. on December 24, 2015, and county boards of elections are encouraged to return certification forms at any time prior to December 30, 2015. PETITION SUBMITTED The Secretary of State’s Office received a petition for an initiated statute on Tuesday, December 22, 2015. Boards of elections must examine each part-petition in order to determine the number of qualified electors who signed it. CHECKING SIGNATURES ON THE PETITIONS Before checking any petition, the board must review the instructions contained in Chapter 11 of the Election Official Manual (Directive 2015-33) regarding the review of circulator’s statements and signatures and marking signatures. Prior to verifying the validity of individual signatures contained on a part-petition, the board of elections must verify the validity of that part-petition. Check each part-petition to determine whether the circulator’s statement on the last page of the part-petition has been properly completed. The entire part-petition is invalid if the circulator’s statement is not completed as required by law. PART-PETITION BELONGS TO ANOTHER COUNTY If you receive a part-petition that belongs to another county, please follow the process outlined below. It is imperative that a copy of a part-petition belonging to another county is transmitted to the other county as quickly as possible for signature verification. 1 R.C. 3501.11(K). Directive 2015- 40 Instructions Regarding the Review, Examination, and Verification of the Petition Proposing an Initiated Statute (Ohio Drug Price Relief Act) Page 2 of 3 In the event that a board receives a part-petition on which the majority of signatures on the partpetitions are in another county, that board of elections may not determine the validity of that part-petition or review the signatures contained on it. Instead, it must forward the original partpetition to the other county following the steps below and utilize the two spreadsheets provided and return them in the envelopes provided when all part-petitions are returned to the Secretary of State’s Office: 1. Part-Petitions Sent Spreadsheet (Original Part-Petition(s)) 2. Part-Petitions Received Spreadsheet (Emailed or Faxed Part-Petition(s)) If a board of elections receives a part-petition(s) for another county, it should follow the steps below to send a copy of it to the correct county: 1. Contact the Director or Deputy Director at the other county board by phone to notify him or her that your board will be forwarding a copy of a part-petition(s) and determine if it should be emailed or faxed. 2. Log the transfer of the part-petition(s) being sent on the “Part-Petitions Sent” spreadsheet. 3. Send the copy of the part-petition(s) via either email or fax as agreed to. 4. Return the original part-petition(s) with the “Part-Petitions Sent” spreadsheet in the envelope provided and marked as such. When the board returns its checked part-petitions to the Secretary of State’s Office, place this envelope on top of the checked part-petitions so it can be easily located and retrieved from the box. If a board receives a part-petition from another county: 1. Log the part-petition(s) that the board received on the “Part-Petitions Received” spreadsheet. 2. Process the part-petition(s). 3. Return the emailed or faxed part-petition(s) with the “Part-Petitions Received” spreadsheet in the envelope provided and marked as such. When the board returns its checked part-petitions to the Secretary of State’s Office, place this envelope on top of the checked part-petitions so it can be easily located and retrieved from the box. Note: Even if a board does not send a part-petition(s) to another county and/or does not receive a copy of a part-petition from another county, the board must mark the box (X) in the bottom right hand corner of the spreadsheet and place it in the correct envelope. When the board returns its checked part-petitions to the Secretary of State’s Office, place both envelopes on top of the checked partpetitions so they can be easily located and retrieved from the box. FULFILLING PUBLIC RECORDS REQUESTS Your board of elections may receive one or more public records requests for copies of the partpetitions. Boards should consult with their statutory legal counsel, the prosecuting attorney, before rejecting, fulfilling, or responding to any public records request. Directive 2015- 40 Instructions Regarding the Review, Examination, and Verification of the Petition Proposing an Initiated Statute (Ohio Drug Price Relief Act) Page 3 of 3 SCANNING THE PETITIONS After you have completed checking the signatures on the part-petitions, you should electronically scan the relevant pages of each part-petition (including at least the cover page, the pages containing signatures, and the page containing the circulator statement). A copy of the scanned images should be saved onto one or as many CDs, DVDs, thumb-drives, or other similar electronic media as may be necessary and a copy sent to the Secretary of State’s Office along with the part petitions and certification form. You must keep an electronic copy of the images for your records. CERTIFICATION AND RETURN OF THE PETITIONS As soon as you finish verifying the signatures on your county’s part-petitions, you must return your completed certification form. The certification form must be completed and submitted electronically via Elect Collect by clicking the “Submit” button. The certification form must also be saved and printed. The Director must sign the certification form and return the signed certification form to Emily Bright via email to Ebright@ohiosecretaryofstate.gov. All certification forms must be received by NOON on December 30, 2015. After you have sent your certification form to Emily Bright, you must return all part-petitions to the Secretary of State’s Office, Elections Division, 180 East Broad Street, 15th Floor, Columbus, Ohio 43215, via a trackable delivery method, no later than Monday, January 4, 2016. All part-petitions must be received by the Secretary of State’s Office no later than Monday, January 4, 2016. If you have any questions concerning this Directive, please contact the Secretary of State’s elections counsel assigned to your county at (614) 466-2585. Sincerely, Jon Husted Case No. ____________ In the Supreme Court of Ohio ---------------------------------------------------STATE EX REL. TRACY L. JONES., et al., Relators, v. JON HUSTED, Respondent. Original Action in Mandamus _______________________________ Exhibit B _______________________________ DIRECTIVE 2016-01 January 04, 2016 To: All County Boards of Elections Directors, Deputy Directors, and Board Members Re: Re-Review of Ohio Drug Price Relief Act Part-Petitions BACKGROUND It has come to this Office’s attention that several boards of elections have approved part-petitions on which it appears that a person other than the signer of the petition or the circulator may have, contrary to Ohio law, removed one or more signer’s name from the part-petition prior to it being filed with the appropriate election official (i.e., striking a signature). Additionally, it appears that some circulators may have pre-affixed the number of signatures they purportedly witnessed prior to actually circulating the petition, potentially calling into question how many signatures the circulator properly witnessed and attested to in his or her circulator statement. STRIKING A SIGNATURE State law clearly restricts removal of a petition signer’s name from a part-petition except in the following, limited circumstances:  “The circulator of a petition may, before filing it in a public office, strike from it any signature the circulator does not wish to present as a part of the petition,”1; and  “Any signer of a petition or an attorney in fact acting pursuant to section 3501.382 of the Revised Code on behalf of a signer may remove the signer's signature from that petition at any time before the petition is filed in a public office by striking the signer's name from the petition.”2 These provisions of law exist to protect the integrity of the elections process and the circulator, who is required to attest under penalty of election falsification that the circulator witnessed every signature and that he or she believes all of the signatures witnessed are genuine and affixed by qualified electors. Most importantly, however, the witness and attestation requirements serve to protect the registered Ohio voters exercising their right under the state constitution to petition state government (in this case, to propose a state law for consideration by the General Assembly) from having their signature improperly removed from a part-petition. 1 2 R.C. 3501.38(G). R.C. 3501.38(H). Directive 2016-01 Re-Review of Ohio Drug Price Relief Act Part-Petitions Page 2 of 3 Reviewing a large cross-section of part-petitions from across the state has revealed that a strikingly similar method of eliminating a petition signer’s name exists across an alarmingly large number of part-petitions, thus raising a question of fact whether someone other than the petition signer or circulator may have illegally removed a petition signer’s signature from partpetitions. More specifically, it appears that this same or similar method of signature elimination (i.e., a thick, bold stroke of black ink) was used on part-petitions circulated by different individuals, some of whom were paid by different petition circulating firms. If true, a board of elections could conclude that there is sufficient evidence that a part-petition bearing such a bold strikethrough was used to remove a signature contrary to Ohio law. PRE-AFFIXING THE NUMBER OF SIGNATURES WITNESSED ON A CIRCULATOR STATEMENT Ohio law requires every circulator of a part-petition to complete a statement affirmed under penalty of election falsification indicating the number of signatures contained on that partpetition, and that the circulator witnessed the affixing of every signature he or she reported thereon.3 This provision is “a substantial, reasonable requirement”4 and functions to prevent at least two types of petition fraud: (1) fraud resulting from signatures being placed on a partpetition after the circulator has executed the affirmation, and (2) fraud resulting from a circulator executing the affirmation with a number that is close to, or corresponds with, the number of preprinted blank lines on the part-petition and subsequently leaving it in a public location or distributing it serially to friends and family to sign without the circulator being present to witness signatures. The Ohio Supreme Court has accorded flexibility to circulators, providing that “…arithmetic errors will be tolerated, but only if the error does not promote fraud.”5 The relevant example in the Election Official Manual recognizes that “arithmetic errors” may occur: The circulator’s statement indicates that the circulator witnessed 22 signatures, but there are only 20 signatures on the petition. If the number of signatures reported in the statement is equal to or greater than the total number of signatures not crossed out on the part-petition, then the board does not reject the part-petition because of the inconsistent signature numbers.6 By their nature, however, “arithmetic errors” should be isolated, unintentional oversights. 3 R.C. 3501.38(E)(1). State ex rel. Loss v. Bd. of Elections of Lucas Cty., 29 Ohio St. 2d 233 (1972). 5 State ex rel. Citizens For Responsible Taxation v. Scioto Cty. Bd. of Elections, 65 Ohio St. 3d 167 (1992), interpreting Loss, Id. 6 Ohio Election Official Manual, Chapter 11, page 9, discussing Rust v. Lucas Cty. Bd. of Elections, 108 Ohio St.3d 139 (2005). 4 Directive 2016-01 Re-Review of Ohio Drug Price Relief Act Part-Petitions Page 3 of 3 The “over-reporting of signatures” (e.g., a circulator statement purporting to witness 28 signatures on a part-petition bearing only two signatures) is so strikingly prevalent in this submission that the suggestion that unintentional “arithmetic errors” are to blame strains credulity. This cannot be the result envisioned by case law; otherwise the exception would swallow the rule. INSTRUCTIONS Ohio law7 vests authority in the boards of elections to determine the validity of signatures contained on part-petitions of proposed initiated statutes. It is ultimately the Secretary of State, however, who must “determine and certify to the sufficiency of those petitions.”8 As such, my office is returning all part petitions to the boards of elections to conduct a re-review to determine whether or not the evidence on the part petitions themselves in each county is such that the board determines a signature was improperly removed in violation of R.C. 3501.38(G) and/or (H) or that the circulator’s statement is invalid under R.C. 3501.38(E)(1). Boards of elections must complete this re-review, including any evidentiary hearings that they may believe necessary to complete their duties, and re-certify their findings to the Secretary of State’s Office no later than January 29, 2016. Boards of elections must follow the other relevant instructions of Directive 2015-40 as a part of their re-review and re-certification process. If you have any questions regarding this Directive, please contact the Secretary of State’s elections counsel assigned to your county at (614) 466-2585. Questions regarding issuing and serving subpoenas and/or conducting a lawful evidentiary hearing should be directed to the board’s legal counsel, the county’s prosecuting attorney. Sincerely, Jon Husted 7 8 R.C. 3501.11(K) and 3519.15. R.C. 3501.05(K).